92 Decision Citation: BVA 92-17490
Y92
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 91-20 675 ) DATE
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)
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(RECONSIDERATION)
THE ISSUE
Entitlement to a rating in excess of 30 percent for chronic
obstructive pulmonary disease.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
V. Jordan, Counsel
INTRODUCTION
The veteran had active service from December 1943 to April
1946.
This matter came before the Board of Veterans' Appeals
(hereinafter the Board) on appeal from a rating decision of
November 1989, from the Detroit, Michigan, Regional Office.
The notice of disagreement was received in November 1989.
The statement of the case was issued in December 1989. The
substantive appeal was received in February 1990. The
appeal was received at the Board in May 1991 and docketed in
June 1991.
The Board entered a decision in this case on January 7,
1992. Subsequently, a request for reconsideration was filed
with the Board. Reconsideration of the decision has been
ordered by the authority granted to the Chairman in
38 U.S.C. § 7103, and the case is now before an expanded
Reconsideration Section of the Board. The final decision by
the Reconsideration Section will replace the decision of
January 7, 1992.
The appellant is represented by the Disabled American
Veterans in this matter.
REMAND
The veteran's only service-connected disability is his
chronic obstructive pulmonary disease. In the veteran's
substantive appeal, he indicated that the originating agency
erred in not continuing the total evaluation he was assigned
prior to 1981. He argued that he has been unemployable due
to his service-connected disability. At the hearing on
appeal in May 1990, the veteran testified that he terminated
his employment in 1973 due to his lung condition.
It appears that, in addition to the issue of entitlement to
an increased rating for the veteran's chronic obstructive
pulmonary disease, he is seeking a total rating based on
individual unemployability. This issue has not been
developed for appellate consideration.
In an October 1989 statement, Steven B. Rubin, M.D.,
reported that the veteran required daily therapy with
medication and that he was severely limited by his medical
difficulties.
On the Department of Veterans Affairs (hereinafter VA)
examination in June 1990, the examiner noted that the
veteran's chief pulmonary disability came from the copious
sputum production and the severe cough, which were not
adequately reflected in pulmonary function studies or chest
X-rays. Pulmonary function testing of June 1990 showed mild
obstructive ventilatory defect with air trapping.
It is argued that the veteran's lung disability warrants the
assignment of a higher evaluation and that it precludes
employment.
The current evidence does not clearly demonstrate the nature
and extent of the veteran's pulmonary disability. In order
to fairly evaluate his claim, additional development is
desirable. Moreover, the issue of entitlement to a total
rating based on individual unemployability is inextricably
intertwined with the issue of entitlement to an increased
rating for the veteran's pulmonary disability. In similar
situations, the United States Court of Veterans Appeals has
held that piecemeal review is to be avoided and that the
Board should take final action on all issues. Harris v.
Derwinski, 1 Vet.App. 180 (1991).
Accordingly, the case is REMANDED for the following action:
1. The originating agency should obtain
the veteran's treatment records since
1990 by Dr. Steven Rubin, 20180 West
Twelve Mile Road, Smithfield, Michigan
48076. These records should be
associated with the claims folder.
2. Thereafter, the veteran should be
afforded a pulmonary examination in order
to determine the current degree of
impairment caused by his service-
connected pulmonary disease. All
indicated tests and studies should be
accomplished. The veteran's claims
folder should be made available to the
examiner for study, with particular
attention drawn to the examination by the
VA in June 1990 and the medical records
and reports by the veteran's treating
physician.
3. The originating agency should take
appropriate action on the veteran's claim
for a total rating based on individual
unemployability. All indicated
development should be undertaken.
When this development has been completed, the claim should
be reviewed by the originating agency. If the benefits
sought on appeal are not granted, the appellant and his
representative should be given a supplemental statement of
the case with regard to the additional development and
should also be afforded an opportunity to respond. The
record should be returned to the Board for further appellate
consideration, if in order.
No action by the appellant or his representative is required
until further notice is received.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
BETTINA S. CALLAWAY C. P. RUSSELL
JACK W. BLASINGAME
JOHN J. CASTELLOT, SR., M.D. SHANE DURKIN
ROBERT E. SULLIVAN
(Continued on next page)
Under 38 U.S.C. § 7252 (1992), only a decision of the Board
of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of
a preliminary order and does not constitute a decision of
the Board on the merits of your appeal.